Fairmarkit, Inc. v. Whaley
Fairmarkit, Inc. v. Whaley
2022 WL 18717547 (N.D. Fla. 2022)
November 30, 2022

Cannon, Hope T.,  United States Magistrate Judge

Exclusion of Pleading
Dismissal
Default Judgment
Sanctions
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Electronically stored information was not mentioned. The Court granted Plaintiff's motion for a stay of discovery pending resolution of the motion for sanctions, and ordered that Plaintiff's motion for sanctions, Defendant's motion to dismiss, and Defendant's answer be stricken. The Court also directed the Plaintiff to file an affidavit and other materials supporting their request for damages, including attorneys' fees.
FAIRMARKIT, INC., Plaintiff,
v.
JACKIE PAUL WHALEY, Defendant
Case No. 3:22cv5067-TKW-HTC
United States District Court, N.D. Florida
Filed November 30, 2022
Cannon, Hope T., United States Magistrate Judge

ORDER and REPORT AND RECOMMENDATION

*1 This matter is pending before the Court on the following motions: (1) Plaintiff's motion for sanctions; (2) Plaintiff's motion to stay discovery; and (3) Defendant's motion to dismiss. The Court held oral argument on November 30, 2022. In attendance was counsel, Jennifer Richardson, representing Plaintiff Fairmarkit, Inc. The pro se Defendant, Jackie Paul Whaley, did not appear. Upon consideration, the undersigned recommends Plaintiff's motion for sanctions be GRANTED, the clerk enter a default against Defendant, and Defendant's motion to dismiss be DENIED. Additionally, the Plaintiff's motion to stay discovery is GRANTED, pending resolution of the report and recommendation.
I. BACKGROUND
Plaintiff, Fairmarkit, Inc., brings this action against its former Sales Director for Strategic Accounts, Jackie Paul Whaley, for conversion, unjust enrichment, and theft. ECF Doc. 1. The crux of Fairmarkit's claim is that Whaley failed to pay Fairmarkit for a laptop he retained after he voluntarily terminated his employment and failed to return $51,760.40 that Fairmarkit erroneously transferred into Whaley's bank account as salary payments after his departure from the company. Id.
In May, Whaley answered the complaint and denied the allegations. ECF Doc. 6. A Rule 26(f) report was filed in June, and the Court entered a Final Scheduling Order on June 28, setting the discovery cutoff for November 14, 2022. Since that time, however, Whaley has failed to participate in discovery and willfully ignored this Court's orders. Namely, Whaley failed to (1) provide his Rule 26(a)(1) disclosures; (2) failed to respond to written discovery; (3) failed to comply with this Court's order granting Fairmarkit's motion to compel, ECF Doc. 12; and (4) failed to comply with this Court's order directing him to pay Fairmarkit's attorneys' fees, ECF Doc. 15. Those failures resulted in the instant motion for sanctions.
II. MOTION FOR SANCTIONS
In Fairmarkit's motion for sanctions, Fairmarkit asks the Court to enter a default judgment against Whaley. “The district court has broad discretion to control discovery.” Jenkins v. Sec. Eng'rs, Inc., 798 Fed. Appx. 362, 369 (11th Cir. 2019) (citing Phipps v. Blakeney, 8 F.3d 788, 790 (11th Cir. 1993)). This discretion includes the ability to sanction a party for violating a discovery obligation or a discovery order. Specifically, under Rule 37(b)(2), the Court may sanction a party for failing to obey an order to provide or permit discovery, and those sanctions may include “striking pleadings in whole or in part” and “rendering a default judgment against the disobedient party.” Fed. R. Civ. P. 37(b)(2)(A)(iii), (vi). Even absent Rule 37(b), a court may sanction a party for litigation misconduct under its inherent power. See Eagle Hosp. Physicians, LLC v. SRG Consulting, Inc., 561 F.3d 1298, 1307 (11th Cir. 2009). Because a default judgment is the harshest sanction of the options available, it should be granted only where there has been a willful or bad faith failure to obey a discovery or other order, and as a “last resort when less drastic sanctions would not ensure compliance with the court's order.” Malautea v. Suzuki Motors Co., Ltd., 987 F.2d 1536, 1542 (11th Cir. 1993) (citing Navarro v. Cohan, 856 F.2d 141, 142 (11th Cir. 1988)).
*2 The undersigned finds Whaley has engaged in willful conduct, which has resulted in a delay of this action and prejudiced Fairmarkit's ability to prosecute this action. There can be no doubt that Whaley is aware of this case, knew of his discovery obligations, and received the Court's orders. He filed an answer, he communicated with Plaintiff's counsel regarding the Rule 26(f) report, and none of the Court's orders have been returned undeliverable. He was also made aware of Fairmarkit's intent to file the motion for sanctions. See ECF Doc. 16 at 9 (certificate of attorney conference).
Whaley, however, has seemingly just chosen to ignore his obligations and this Court's orders. As stated above, Whaley did not produce his Rule 26(a)(1) disclosures and did not respond to discovery. Fairmarkit filed a motion to compel, ECF Doc. 11, and Whaley ignored that motion. The Court granted the motion, ordering Whaley to respond to discovery in 7 days, ECF Doc. 12, and Whaley ignored that order, ECF Doc. 13. Fairmarkit sought fees and costs for filing the motion to compel, and despite being given an opportunity to file a response to that request, Whaley failed to respond. ECF Doc. 12. The Court, thus, ordered Whaley to pay $1,419.00 in attorneys' fees, and Whaley ignored that order. ECF Doc. 15. Fairmarkit filed the instant motion for sanctions and Whaley has ignored that motion. ECF Doc. 17. Fairmarkit filed a motion to stay discovery and Whaley has ignored that motion. ECF Doc. 18. The Court issued an order setting the pending motions for hearing and Whaley ignored that order. ECF Doc. 19.
Whaley's pro se status does not give him the right to ignore his discovery obligations or this Court's orders. See Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989) (“pro se litigants are subject to the Federal Rules of Civil Procedure, including sanctions for misconduct and for failure to comply with court orders”). And that status certainly does not insulate him from a default judgment. See Maus v. Ennis, 513 F. App'x 872, 878 (11th Cir. 2013) (finding no abuse of discretion by court for imposing default judgment as a sanction against pro se litigant for “disrespectful conduct and his refusal to participate in discovery”). Moreover, unlike typical pro se litigants, Whaley cannot be described as unsophisticated. In his answer, Whaley contends that he left a six-figure salary to work for Fairmarkit and that in his prior job he was “leading 20-30m dollar deals.” ECF Doc. 6. Whaley certainly had the opportunity to show up at the hearing and explain his behavior but failed to do so.
The undersigned also finds that no lesser sanction than a default judgment is sufficient. If Whaley's failure to comply with discovery was his only shortfall, or Whaley had ignored just one court order, lesser sanctions might be appropriate. However, here, Whaley has exhibited a pattern of conduct showing that he has no respect for this Court, its orders, or the rules of the court. Given that the undersigned was unable to garner compliance from Whaley with an order or even the issuance of monetary sanctions, the undersigned finds a default judgment to be warranted.
III. MOTION TO DISMISS
Despite having answered the complaint, after Fairmarkit filed its motion for sanctions, Whaley filed a 2-paragraph request for dismissal. ECF Doc. 17. Whaley cites no legal authority supporting dismissal. Instead, Whaley appears to seek dismissal because his “key witness” has passed away, he has been in the industry 35 years, is a “highly reputable” Florida resident with 5 kids, and the allegations are “grudge related.” Id. Even accepted as true, none of those claims support a dismissal. Regardless, to the extent Whaley is seeking to assert any ground for dismissal under Rule 12(b)(6), the motion is untimely since Whaley has already filed an answer to the complaint. Fed. R. Civ. P. 12(b); Skirtch v. Thornton, 280 F.2d 1295, 1306 (11th Cir. 2002). Thus, the motion should be DENIED.[1]
*3 Accordingly, it is ORDERED:
1. Plaintiff's motion for a stay of discovery pending resolution of the motion for sanctions, ECF Doc. 18, is GRANTED.
It is further RESPECTFULLY RECOMMENDED:
1. Plaintiff's motion for sanctions, ECF Doc. 16, be GRANTED.
2. Defendant's motion to dismiss, ECF Doc. 17, be DENIED.
3. The clerk be directed to enter default against Defendant.
4. The Defendant's answer, ECF Doc. 6, be STRICKEN.
5. The Plaintiff be directed to file an affidavit and other materials supporting their request for damages, including attorneys' fees.
At Pensacola, Florida, this 30th day of November 2022.
NOTICE TO THE PARTIES
Objections to these proposed findings and recommendations must be filed within fourteen days of the date of the Report and Recommendation. Any different deadline that may appear on the electronic docket is for the court's internal use only and does not control. An objecting party must serve a copy of its objections upon all other parties. A party who fails to object to the magistrate judge's findings or recommendations contained in a report and recommendation waives the right to challenge on appeal the district court's order based on the unobjected-to factual and legal conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636.

Footnotes

Whaley asks, in the alternative, to mediate the case. However, since Whaley failed to appear at the Court ordered hearing, has provided no discovery, and has been mostly non-communicative with Plaintiff, the Court sees no benefit in a mediation.